Case Note & Summary
The petitioner, Francis Cyril C Cunha, is the accused in C.C. No. 327/2012 pending before the Civil Judge and JMFC, Moodbidri, for an offence punishable under Section 31 of the Protection of Women from Domestic Violence Act, 2005 (DV Act). The respondent, Lydia Jane D'Cunha, is the complainant/wife. The petitioner filed an application under Section 239 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking discharge, primarily contending that the complaint was not maintainable because the respondent was not an 'aggrieved person' under the DV Act. The trial court dismissed the discharge application on 28.02.2013. The petitioner appealed under Section 29 of the DV Act before the Sessions Court, Mangaluru, in Criminal Appeal No. 211/2013, which was also dismissed on 04.02.2014. Aggrieved, the petitioner filed the present criminal revision petition under Section 397 read with 401 Cr.P.C. before the High Court of Karnataka. The High Court, after hearing both sides, observed that the question of maintainability of the complaint is a matter to be decided at the trial and not at the stage of discharge under Section 239 Cr.P.C. The court found no illegality or irregularity in the impugned orders and dismissed the revision petition, thereby upholding the refusal to discharge the accused.
Headnote
A) Criminal Procedure Code - Discharge - Section 239 Cr.P.C. - Maintainability of Complaint - The petitioner/accused sought discharge under Section 239 Cr.P.C. in a case under Section 31 of the Protection of Women from Domestic Violence Act, 2005, arguing that the complaint was not maintainable as the respondent/wife was not an 'aggrieved person' under the Act. The trial court dismissed the discharge application, and the Sessions Court upheld it. The High Court held that the question of maintainability of the complaint cannot be decided at the stage of discharge under Section 239 Cr.P.C. and must be raised at the trial. The revision petition was dismissed. (Paras 1-5)
Issue of Consideration
Whether the order refusing to discharge the accused under Section 239 Cr.P.C. for offence under Section 31 of the Protection of Women from Domestic Violence Act, 2005 is sustainable.
Final Decision
The High Court dismissed the criminal revision petition, holding that the question of maintainability of the complaint under Section 31 of the Protection of Women from Domestic Violence Act, 2005 cannot be decided at the stage of discharge under Section 239 Cr.P.C. and must be raised at the trial. The impugned orders were upheld.
Law Points
- Discharge under Section 239 Cr.P.C. is not the stage to decide maintainability of complaint under Section 31 of the Protection of Women from Domestic Violence Act
- 2005
- Maintainability of complaint under DV Act can be raised at trial
- Revision under Section 397 Cr.P.C. against refusal to discharge is not maintainable if no illegality or irregularity
Case Details
2015 LawText (KAR) (12) 5
Criminal Revision Petition No. 758 of 2015
Sri. Tharanath Poojary I. for petitioner, Sri. G. Balakrishna Shastri for respondent
Mr. Francis Cyril C Cunha
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Nature of Litigation
Criminal revision petition challenging the dismissal of discharge application under Section 239 Cr.P.C. for offence under Section 31 of the Protection of Women from Domestic Violence Act, 2005.
Remedy Sought
Petitioner/accused sought to set aside the order dated 04.02.2014 passed by the Principal Sessions Judge, D.K., Mangalore in Crl.A.No.211/2013 upholding the order dated 28.02.2013 passed by the Civil Judge and JMFC, Moodbidri in C.C.No.327/2012 dismissing the discharge application filed by the petitioner for the offence under Section 31 of the Protection of Women from Domestic Violence Act and to discharge the petitioner of the said offence.
Filing Reason
The petitioner/accused filed a discharge application under Section 239 Cr.P.C. contending that the complaint under Section 31 of the DV Act was not maintainable as the respondent was not an 'aggrieved person' under the Act.
Previous Decisions
The trial court (Civil Judge and JMFC, Moodbidri) dismissed the discharge application on 28.02.2013 in C.C.No.327/2012. The Sessions Court (Principal Sessions Judge, D.K., Mangalore) upheld the same on 04.02.2014 in Crl.A.No.211/2013.
Issues
Whether the order refusing to discharge the accused under Section 239 Cr.P.C. for offence under Section 31 of the Protection of Women from Domestic Violence Act, 2005 is sustainable.
Submissions/Arguments
Petitioner argued that the complaint under Section 31 of the DV Act was not maintainable as the respondent was not an 'aggrieved person' under the Act.
Respondent opposed the discharge application, contending that the maintainability issue should be decided at trial.
Ratio Decidendi
The question of maintainability of a complaint under Section 31 of the Protection of Women from Domestic Violence Act, 2005 cannot be raised at the stage of discharge under Section 239 Cr.P.C. and must be decided at the trial. The revision petition under Section 397 Cr.P.C. against the refusal to discharge is not maintainable if no illegality or irregularity is shown.
Judgment Excerpts
Present petition is filed under Section 397 of Cr.P.C. challenging the order of the learned Civil Judge, Moodbidri passed on 28.02.2013 in C.C. No.327/2012 and the confirmation of the same by the learned Sessions Judge, Mangaluru in Crl.A.No.211/2013.
An application was filed under Section 239 of Cr.P.C. seeking discharge. The said application came to be dismissed after contest as against which an appeal was filed in terms of section 29 of the said Act before the Sessions Court at Mangaluru.
Procedural History
The petitioner/accused was summoned in C.C. No. 327/2012 for offence under Section 31 of the Protection of Women from Domestic Violence Act, 2005. He filed a discharge application under Section 239 Cr.P.C., which was dismissed by the trial court on 28.02.2013. He appealed under Section 29 of the DV Act before the Sessions Court, Mangaluru, which dismissed the appeal on 04.02.2014. He then filed the present criminal revision petition under Section 397 read with 401 Cr.P.C. before the High Court of Karnataka.
Acts & Sections
- Protection of Women from Domestic Violence Act, 2005: 31, 29
- Code of Criminal Procedure, 1973: 397, 401, 239
